Celebrating the 40th Anniversary of Title VII

Panel I - Tuesday, June 22, 2004
First Principles - Enacting the Civil Rights Act and
Using the Courts to Challenge and Remedy Workplace Discrimination

PROCEEDINGS

GWENDOLYN REAMS: Okay, we're going to get started here.

Good morning, everyone.

My name is Gwendolyn Reams, here for the Committee, and I'd like
to welcome you here to the first of a series of panel discussions
in celebration of the 40th Anniversary of Title VII.

For these series of panels, um, we would like to review Title
VII's impact on discrimination in the workplace by focusing on
three phases: Adoption, expansion, and amendment.

The focus of the various panels is described in the program, and
we hope you'll be able to attend all three.

Today's panel will discuss the passage of Title VII, and some of
the most significant cases brought to the courtroom during the
years.

You'll find that many of our panel members were involved one way
or the other in many of these significant cases.

First, let me just mention a few housekeeping matters. There
will be a 20-minute break, um, around 10:30, at which time you'll
find coffee and refreshments up in the lobby by the registration
desk.

There will be plenty of time for questions, which we want to
have at the end of the day. To expedite this process, we have
provided you with some cards so that you could take down questions
during the discussion, and we'll have the ushers collect the cards
before the break.

Um, we'll share these questions with the moderator, and
hopefully we'll be able to get through the written questions, and
we do still plan to have, um, oral questions at the end of the
question and answer period, so if you prefer to wait and hold your
question, you could ask it at that time.

We have the mikes in the aisles, and we'll also have ushers to
bring you the mikes, if you find it difficult to get to them.

We ask that you please turn off all cell phones and pagers, or
set them to vibrate, and also there are restrooms straight up
across from the registration desk.

Now to the program. I'm happy to introduce Bill Robinson, who
will moderate today's discussion. Ah, I will let Bill introduce the
panelists. You'll find information about Bill and all the panelists
in your program. I do want to point out that there is one change in
the panel line-up because Robert Belton, Professor Belton from
Vanderbilt, was taken ill and unable to make it.

Thankfully, David Cashdan has agreed to join the panel on
actually very short notice, and we thank him for that.

You've received a copy, there is an insert in your program with
a bio of David Cashdan, so without further adieu, I will turn it
over to Bill.

WILLIAM ROBINSON: Thank you, Gwen. I just want to make a few
brief opening remarks, and then I want to -- and then I will ask
each of our panelists to make an opening presentation of no more
than 15 minutes. After the opening presentations, um, then we want
to try to mix it up a little bit between the panelists by giving
them an opportunity to respond to things that they've heard, and
after we mix things up with the panelists, then we'll open it up to
the audience. Looking out at the audience, I see a number of people
who've got a level of expertise and history with Title VII that
suggests they would easily belong here at the front of the room as
a member of the panel, so I anticipate that we are going to have a
robust discussion this morning.

When Title VII was passed, many of us had extremely high hopes.
We expected that this statute was literally going to transform
America, and usher in a complete world of equal employment
opportunity. And as we look at the achievements that have occurred
under this title, there is a lot of reason to be awfully proud.

Title VII has indeed accomplished a sea change in the face of
employment in America, and it's easy to take that for granted. It
is easy to take for granted the fact that many, many thousands of
individuals feel perfectly free to put their complaint in writing
and submit it to the Equal Employment Opportunities Commission with
an expectation that they are going to get some measure of
justice.

Um -- But while we have all these good feelings, and some not so
good feelings about Title VII, and what has been accomplished under
it, at the beginning it didn't look so easy. Starting right off
with the adoption of Title VII itself, as most of you I'm sure
know, it was a question as to whether the historic 1964 Civil
Rights Act was even going to include a provision concerning
employment. Significant lobbying and pressure had to be applied to
the Kennedy brothers before they agreed to incorporate a provision
for Title VII into the statute.

Ironically just the preceding year, the first significant
anti-discrimination in employment provision had been adopted to
protect the rights of women, the Equal Pay Act. It is ironic,
because that statute was carefully conceived, adopted by Congress
after hearings, and Title VII the provision preventing sex
discrimination was sort of slipped in at the end.

Um, the adoption of the Act was even more complicated. There was
no committee -- There were no committee hearings in the Senate. The
bill went directly to the floor, and that, of course, horribly
complicates any attempt at reviewing and making use of the
legislative history of the Act.

Um, turn your attention to the language of the statute
itself.

The language of the statute itself has charitably been
characterized a conundrum. If you look at the statute from the
perspective of a charging party, in -- on July 2nd, 1965, you must
feel sorry for that poor charging party. He was faced with tight
deadlines for filing his charge. He was confronted with the -- the
possibility that he must obtain a decision by the Equal Employment
Opportunities Commission of cause, or perhaps wouldn't be allowed
to go to court. The procedural requirements of the statute, in
short, were problematic.

Furthermore, the Equal Employment Opportunities Commission, the
agency entrusted with the responsibility -- the primary
responsibility for enforcing the statute, didn't have any authority
to bring suits, or cease and desist, or any other strictly speaking
enforcement authority. Of course the statute was subsequently
amended, and those amendments carry with them their own story.

So the government finally had authority to challenge invidious
discrimination in employment, and that raised the question of how
was the government going to use this authority. Who would be sued,
raising what kinds of claims?

Once you decide who you are going to sue, then you have the
substantial difficulty of coming up with a theory of
discrimination.

What facts are sufficient to establish then a violation on
behalf of an individual claiming that they were treated differently
because of their race, sex, national origin, or religion?

Going beyond the individual, discrimination in employment was
not just an individual matter in 1965, there were broad patterns of
racial, gender, segregation, and hierarchy throughout many
industries and throughout most regions of the country. One of the
tasks, then, was to come up with viable theories that would allow
that individual to seek relief, and that would allow relief against
those broad patterns of discrimination.

Needless to say, lawyers and government agencies played a
pivotal role, but perhaps the single most important role in the
early enforcement efforts was the role of the courts themselves.
Um, none of what we now take for granted would have been possible
without the receptive, sympathetic, courageous, creative decisions
rendered by the courts, particularly the courts of appeals.

I have just raised a lot of issues. We've got an all-star panel
here this morning that includes the people who were directly
involved in resolving all of those issues. Ah, you've got their
background and bio in the program, and so I am not going to belabor
you with repeating what you can read.

I do want to make great comments about each of these
individuals. Mike Gottesman is going to lead us off. Mike was
there, ah, for the lobbying to include Title VII. He was there
representing major unions in the early enforcement efforts with the
premier labor union law firm in the country, Bredhoff, as I knew
it, Gottesman, and Kaiser.

Dave Rose led the Justice Department's Employment Law Section
when the Department had to make those decisions. Who do you sue?
What do you allege? What is your theory of discrimination?

David Cashdan was a senior lawyer -- He was a young man, but
nonetheless a senior lawyer, at the Equal Employment Opportunities
Commission during those early years when it had no court
enforcement authority, and yet had the responsibility for making
the Act work. He and his colleagues creatively joined hands with
private lawyers filed amicus curiae briefs in literally hundreds of
cases, and helped to form that statute.

Bill Brown was chairman of the EEOC at the time it acquired
authority to go into court and bring suits. Bill led the effort to
get the agency that authority, and thereafter mapped out the
strategy that EEOC would follow in those early years effectively to
enforce the statute.

Julius Chambers has worn many hats during the course of the
development of Title VII.

In early 1965, he drafted the charge for a young man named
Willie S. Griggs, and later, along with Bob Belton, tried Griggs
against Duke Power. He also worked on a little case called
Albemarle Paper against Moody, and argued that and other cases to
the Supreme Court of the United States. Batting clean-up we have
the honorable Judge Donald Lay. Judge Lay has sat on numerous
path-breaking Title VII cases. The one that will most readily come
to your mind is the decision by the panel of the Eighth Circuit
Court of Appeals in a case styled Green versus McDonnell Douglas.
Surely you will agree with me that we have got the A-team, and I
want to call on Mike Gottesman to lead us off. Mike.

MICHAEL GOTTESMAN: Thank you, Bill. One of the many joys of
getting old, I didn't know there were going to be joys, it turns
out there are lots: Number one is probably the grandchildren, but
number two is that you can attend 40th anniversary celebrations of
events, and give eyewitness reports of what happened then.

I'm looking forward to the 50th anniversary. I hope they'll
invite me back. I hope I'll be here to be invited back.

I was quite a young lawyer when Title -- when the Civil Rights
Act of '64 was being considered in Congress, and it would be
foolish to suggest I had any significant role in the legislative
history, but my law firm was the, as Bill said, the law firm that
represented a big chunk of the labor movement, and the labor
movement was very actively involved, so I had a kind of window on
the legislative history, ah, and Bill told me my task here was to
review some of the events that led to the passage of Title VII, and
some of the events that happened involved the labor movement
immediately after its passage.

Bill has mentioned already one of the forgotten facts about the
Civil Rights Act of 1964, and that is that when Kennedy
Administration introduced this very ambitious bill, it didn't
contain an employment title. Now, that wasn't because the Kennedys
were unsympathetic to solving problems of employment
discrimination. It was a raw political calculation. The Civil
Rights Act bill involved many areas, public accommodations, voting,
education, and the like. And most of those areas were perceived to
be areas that -- where the problems existed predominantly in the
south. Everybody understood that the southerners in the Senate were
going to filibuster any civil rights legislation. To overcome that
filibuster, it was going to require virtually unanimous support
from northern senators. And the fear was that if you put an
employment title into this bill, corporate America may start
lobbying the northern Republican senators: You can't enact this
legislation, and their votes wouldn't be there to secure a passage.
And out of that fear, the Kennedy Administration made the judgment:
We can't have an employment title.

Um, now this was a big disappointment to the labor movement, at
least to the CIO half of the AFL-CIO, which had always been a
vigorous proponent of fair employment legislation, from the time
that Harry Truman had first introduced. These unions had very large
minority populations. These minority populations were politically
powerful within the union, held a lot of the union offices, and
their number one priority was that there was going to be a civil
rights bill that included what we now know as Title VII.

The House Judiciary Committee, which was the first to report out
the Kennedy Administration's bill, reported it out as Kennedy
introduced it, without a labor title.

Ah, and the labor movement went to the House Labor Committee,
their friends, and said: We want you to report out a bill that
would involve employment discrimination. And George Meaney, then
the president of the AFL-CIO, went and testified in support of that
before the House Labor Committee, and there is a little bit of a
story here, that may bore most of you, but I've got to tell it,
about the internal struggles within the labor movement that led to
George Meaney, a former president of the Plumbers Union, one of
those building trades unions that had no black members, um, that
led to his appearing in congress and vigorously championing not
only the enactment of an Employment Discrimination bill, but one
that would include unions as potential defendants in that bill,
because he was very clear that he was proposing a bill not just
targeting employers, but targeting unions as well.

The AFL-CIO was then a very young institution. The merger of the
AFL and the CIO had occurred only a few years before, and these
were two remarkably different institutions. The CIO unions were the
industrial unions. They were a -- They had large minority
populations, they had always been battlers on civil rights on
behalf of minorities. The AFL unions, who were predominantly the
building trades unions were all white, tended to be politically
conservative, disinterested. Meaney, to his credit, ah, took the
side of the CIO in the decision to go and lobby for the enactment
of Title VII. And as I've said, he testified that unions should be
included as defendants in this bill. He said unions had been trying
to clean up these problems at the national level, but our locals,
many of them have resisted. We don't have the tools to do this. We
need your help.

The House Labor Committee did report out the employment title,
and on the floor of the House, it got merged into the bill that the
Kennedy Administration had proposed.

Ah, the House Democrats, who were supporters of the legislation,
they knew it could pass in the House. They weren't worried about
whether it was going to be filibustered in the Senate, so they
happily added the labor title to the bill the Kennedy
Administration had proposed.

One other thing that was not in the Kennedy Administration's
proposal was a ban on discrimination based on sex.

And you probably do know this piece of the history, how sex got
into Title VII, an amendment adding sex to Title VII was proposed
by southern Congressmen, who were vowed opponents of this
legislation. They were troubled that employers, contrary to
predictions, were not vigorously fighting the enactment of Title
VII in the House, and as I'll explain in a minute, there is a
reason for that. The employers had made a calculation why fight in
the House. We can do business when the filibuster starts in the
Senate.

But in any event, as an effort to try to derail this bill, the
southern congressmen thought that if they added sex to the bill,
now that was more than corporate America could possibly stomach,
and they would come in, and they'd fight the bill.

Um, that -- The episode dealing with their proposal to add sex
is not one of the happiest chapters for some of the liberals in
Congress, who, fearing they were right, and that adding sex would
defeat the bill, got up and made what to today's eyes seem
remarkably sexist speeches about women belonging in the home, and
et cetera. Included in the ranks of those who made these speeches
was one Emanuel Celler, who was the chair of the House Judiciary
Committee, a Congressman from New York, who lived to regret this,
because within a decade he had been defeated when he was running
for re-election, defeated in the primary by Elizabeth Holtzman, who
wrapped his speech opposing adding sex to Title VII around him
throughout the campaign.

But the southern congressmen did, of course, have allies. Some,
of course, were champions of the feminist movement, and rallied to
the idea of adding sex, and this combination of southern
congressmen and feminists succeeded in adding sex to the bill.

And to the southerners' consternation, in fact it was no
impediment to the ultimate passage of the bill, which is not to
suggest that passage was easy. It was easy in the House. The House
was overwhelmingly Democratic. There was no filibuster. The bill
got through the House by a handy vote with, you know, with not much
delay.

And then the big battle came in the Senate. As Bill said, they
held no hearings in the Senate. Ah, the judgment was if we're going
to get this thing through, we've got to take what the House has
given us and run with it, and do it quickly, and so the Senate took
up debate on the House bill, and then began what was, and I believe
still remains, the longest filibuster in the history of the United
States.

Um, now, those were the days where a filibuster was really a
filibuster, where if you wanted to filibuster, you had to talk
non-stop hours a day, day after day after day. It is not like
today, where if you want to filibuster, you call the Senate
majority leader and you say: Hey, we're filibustering, he says:
Great, let's go out to dinner. Your filibuster is duly noted, and
until we come up with the requisite 60 votes, we won't do anything
with this bill.

In those days, you talked and you talked. I actually got to
read, um, when we were representing the steel workers in the Weber
case, the first case to question whether affirmative action is
prohibited by Title VII, and we had negotiated affirmative action
provisions in the steel and aluminum industries, and we made the
judgment: We needed to read the entire legislative history of Title
VII to find out what is in there that casts a light on affirmative
action.

So I took a month, and it literally required a month, to read
the entire legislative history of Title VII. I claimed, I don't
know if this is true, that I am the only person that ever did. Ah,
it is quite interesting to read the full text of a filibuster, you
know, at 3 in the morning, you've got southern senators reading
recipes, and poems, and old patriotic confederate songs, and the
like, but every once in awhile they would try to slide in a little
piece of legislative history that could later be used just in case
in this bill got enacted, were happy to see that this law will not
be enforceable in courts, and then the supporters, there was always
a supporter or two who had to stay in the room at all times, so
that when moments like that came up, they could ask to be
recognized. Will the senator yield, and of course the filibustering
senator would not yield, because if he yielded, the filibuster
would be over. But the filibustering senator would say: But I will
entertain questions. And so the Democrat, whoever, the supporter of
the bill would then say: Of course it is not true that this bill
would not allow enforcement in courts, et cetera.

So there was this endless filibuster, which finally got
overridden by cloture, but by an incredibly small vote. We in the
labor movement are quite proud because Hubert Humphrey, who was the
floor manager of the overall civil rights bill, credited the labor
movement with having twisted the two arms necessary to achieve the
filibuster.

I hope that he is right. It is certainly true that the labor
movement had hundreds of lobbyists here in Washington working
around the clock trying to round up the -- the marginal
senators.

Now here in the Senate is where the corporate America got its
pound of flesh, if you will. The votes that were hardest to get
were Republicans in the north led by Everett Dirksen of Illinois,
who was the House minority leader, and in order to get their votes,
it was necessary for the sponsors of the legislation to add a whole
bunch of exceptions, limitations, et cetera, that appear in Section
703(e) and (h) and the like, but also it was necessary to agree
that the EEOC would not have either decision-making power or
enforcement power. It could issue probable cause rulings, but it
couldn't decide cases and it couldn't go to court. That was a
fundamental weakness of it, and it was only eight years later, with
the amendments in 1972, that the EEOC got enforcement power.

Those are the prices that were paid in order to get the votes
necessary for the enactment of the statute.

Um, one last thing, and I'll subside, and that is, um, the first
few months after Title VII became effective, of course it was
enacted in '64, it didn't become effective until a year later, July
2, 1965.

And I remember vividly, I was still even then quite a young
lawyer. On Yom Kippur day 1965, Yom Kippur is the holiest day in
Jewish religion. It is the day when you are supposed to spend the
entire day in synagogue fasting. For whatever reason, FDR, Jr., the
first chairman of the EEOC, decided that on Yom Kippur day, he
wanted to meet with a lawyer for the steel workers about this very
unusual phenomenon, which is that a huge percentage of the early
charges under Title VII were being filed at steel plants, something
that he found surprising, both because he knew the union had been
very supportive, and that it had lots of black members, and in fact
steel plants were probably the highest paying occupation for black
workers around the country who were employed in huge numbers
there.

He was insistent that the meeting be that day. All the lawyers
in my firm were Jewish. We were the principal lawyers for the Steel
Workers Union. I was the junior lawyer, so the senior lawyers all
went to synagogue, and I went to the Office of the Chair of the
EEOC.

Um, these are the circumstances that enabled junior associates
to get into high places.

Um, and Roosevelt and some of the other principal officers of
the EEOC were at this meeting, and there was me, and he said: We
are a little surprised by this. We expected we were going to get
lots of complaints about the building trades who have no black
members, but no, instead what we are getting in volumes are
complaints from steel plants. And I said: Well, why are you
surprised? You've got this new law. People, employees don't know
much about it at this point. They don't know how to go about filing
charges. They are terrified of filing charges because they don't
know there is an antiretaliation provision in the law, and are
afraid their employers are going to fire them. It is not at all
surprising that you would see complaints from a place where there
are lots of highly skilled and highly knowledgeable black union
officers and grievance committeemen in an industry where employees
have, by virtue of the collective bargaining agreement, complete
job protection. They don't have to worry about getting fired, and
they have some real grievances, which is yes, blacks were employed
in volume in steel plants, and yes, they were making lots of money,
but weren't making as much money as the white employees, on
average, and why was that? It is because when they applied for a
job, the employers would decide what department they go into, and
the employers had discriminated on the basis of race in making
those initial assignments, and I said, "We're with you. We are
prepared to fight with you to challenge these initial assignments."
We had been trying for years to get the employers to agree with us,
that the union would have some role in where people got initially
assigned, but we had been unsuccessful. Our collective bargaining
agreement kicked in after the employees were initially
assigned.

And Roosevelt said: Well, not so fast. These complaints are not
only complaining about discrimination in initial assignments, they
are also complaining that your seniority systems are perpetuating
these initial assignments. And I said, naively, "Well, but there is
a provision in Title VII that says that nothing in this law will
invalidate bonafide seniority systems." And he said, "Well, what
does bonafide mean?" And I said, "Well, that means innocently
motivated," and he said, "Well, you know, some of us think that
maybe it means doesn't perpetuate past discrimination," and I said,
"Well, what is the point of putting it in the law, if that is what
it means"?

And he said, "Well, we're going to have to think about this real
hard." And I said, and this framed an issue that was an issue for a
short time after that, "You know, this is going to be very awkward
for us. We are really, really anxious to be champions of the
enforcement of Title VII. But if you go after the seniority
systems, you are going to put us on the defensive, and do you
really want to do that?"

Well, as David is going to describe, the answer was, "Yes, we
really want to do that."

And they certainly beat the steel workers to a fairtheewell, to
the point where in 1974 the steel workers negotiated an
industry-wide agreement in both the steel and aluminum converting
to plant-wide seniority, it would have been a fabulous thing, but
for the fact that of course the steel industry tanked and never had
anymore job opportunities, and didn't have much value.

But it did -- And the total irony is we agreed to that in 1974.
And shortly after the Supreme Court decided in the Teamsters case
that we had been right all along, and that Title VII did not
invalidate innocently motivated seniority systems. But until the
Supreme Court ruled that way, every lower court had said that
indeed, no matter how innocently motivated, a seniority system that
perpetuates discrimination violates Title VII. So, David.

DAVID ROSE: Woops, excuse me.

I was at the Justice Department for many years before I did
civil rights work. Um, I think it was sometime in 1965 that the
Civil Rights Division came to the Civil Division and asked us to
try to do something about Judge Cox, who had ordered two black
witnesses to be held in contempt of court, um, because they
testified for the Civil Rights Division in a voting case. And the
lawyers from the Civil Rights Division did not think they were
committing perjury, and they wanted something done, and they wanted
it so badly, they had a meeting -- they scheduled a meeting between
the two Assistant Attorneys General, and I was asked to attend, and
within a week or ten days, we had drafted a mandamus, which we
filed in the Fifth Circuit. I had written most of the papers. John
Douglas argued before, and we thought we were going to get a panel,
but I think we ultimately got -- we did get a committee, excuse me,
but he argued. I sat in the back and agonized somewhat, but his
argument finally went pretty well, and we got a five to four ruling
from the Fifth Circuit granting a mandamus petition.

That was important to my career, because I was working with a
great young lawyer then, he was my age, named Bob Owen, who was --
who died at a very young age, um, but who had worked with me on the
papers, and later, um, successfully lobbied John Dohr (phonetic) to
give me a job in the Civil Rights Division, and that was '67, and I
did that, but Ramsey Clark didn't think there was any role for
employment cases by the Justice Department, but John Dohr did, and
I reported to Mr. Clark through John Dohr, so I did, too, and we
were sued -- The Labor Department was sued in December 67' by the
Crown Zellerbach Company, who was -- who then -- I'm sorry, they
weren't sued. They were -- The Labor Department had started an
administrative proceeding against Crown Zellerbach under Executive
Order 11246, which we shouldn't forget, because that was a powerful
motivator for the big business outfits, many of whom I think really
did want to make some change in the system that had been encrusted
throughout the country, of job discrimination.

In any event, the upshot was that the paper makers threatened to
strike on January -- in early January, and the only time in my life
I got to draft a complaint, I got it signed by my then boss, Steve
Pollack, he said, "Bring it down to -- Bring it up to the Attorney
General's Office, and get it signed," and I walked in, and I saw
the Attorney General, and he signed it. And we had filed for a
temporary restraining order and injunction, and I notified the
paper maker's lawyer that I was going to go down there, and we
agreed to meet the judge that afternoon. We flew down, met the
judge around Central Time, and presented the matter to him the next
morning.

He allowed us how he'd never enjoined a strike before, and I
think he never did again. That was Judge Heebe (phonetic). That was
probably the most exciting day of my career at the Justice
Department, and Heebe asked me a couple of times, I think it was in
chambers, whether this was really the Attorney General, was there
really -- was he really interested in that, and I said, "There is
his signature, and I brought it down to him, and he signed it
today." And that seemed to satisfy him.

In those days, the complaints were required to be signed by the
Attorney General, pattern or practice complaints were, so that was
the only way we could have gotten it, but he was a strong
supporter. Anyhow, the -- the injunction got granted, it ultimately
became United States versus Local 189. It is the earliest case that
I had under Title VII.

I -- I had brought a case against Alabama in 1968, which was
also, we brought it on the merit system, but it enjoined race
discrimination, and it was no accident that we brought it before
Judge Frank Johnson in the Middle District of Alabama, who was
delighted to see the complaint, and granted relief about two weeks
after we filed the lawsuit, I believe. It was the fastest case I'd
ever had.

In any event, the Employment Section was started in 1969 under
the Republican Administration and we targeted cases, as Mike was
saying. The EEOC, we -- Steel was certainly one of the targets. I
don't remember a meeting that Mike talked about, I think it was
before I got there, but we sued -- My memory is we sued U.S. Steel
sometime in 1970, but I'm not sure that is the right year.

In any event, that was Bob Moore and Mary Beth Martin is here
nodding her head saying that sounds right. She was a paralegal
then, an Assistant Section Chief now, I believe. In any event, we
had a very exciting time with a band of very few lawyers. I was I
think 30 - 1967 I was 36. By '69 I was 38. I was the old man in the
office with one exception, but I was the old man for a different
reason. I was like the captain, or the chief, but I was literally
the old man for almost all of them because I was at least three or
four years older than everybody except Bob Moore, and was several
years older than him, too, so my great experience was brought to
bear. And the courts were extremely receptive in the early days,
and we brought a lot of lawsuits.

We did target buildings trades. We targeted the building trades
before the steel workers, that is, the Justice Department did, and
there were a series of cases in the 70 and 71 and 72 against local
unions, and then we began to sue the four literally white unions,
sheet metal workers, electricians, iron workers, and plumbers in
community after community, because the pattern was the same. They
were all white. They were in areas with a substantial black
population, and the requirements to get in weren't major, other
than being a son or a nephew or a son-in-law of one of the members.
That requirement was hard to overcome. But that is why we brought
the lawsuits. I don't think we made enormous changes.

I do regret the passage of the '72 Act, in the sense that I
don't think the EEOC ever took on the task of monitoring the cases
that had been brought, and bringing additional cases against
building trades unions, because I don't know -- We lost our
jurisdiction, so I don't know, but my sense is that those unions
are still predominantly white, and that it is still harder, at
least in most of them, in most of the locals, for African Americans
to join than friends and relatives of the members. If somebody
knows that is wrong, I'd be glad to learn of it, but that is my
impression, with no research. The -- One of the things that
happened in '72 is they stopped, EEOC stopped asking for reports of
the membership unions, the old EEO -- I can't remember, the 2s and
3s.

WILLIAM ROBINSON: Union 3s.

DAVID ROSE: Union 3s, so we never get any reports, so we don't
know. That is my impression, if it is different, somebody should
tell me about it. But anyhow, we -- we did a lot of good work in
the early days. The courts were more receptive. It was easier for
the Republican administration to sue building trades lawyers than
big companies, but we were still allowed to sue some of the big
companies in the early '70s and mid-'70s, and we went out of the
private sector business in '74 with the two decrees, the nationwide
trucking decree, which I had worked on quite a bit, and the steel
decree, that you heard about, that Bob, my partner and deputy and
colleague, worked on in steel. Those were important cases. Um, the
trucking companies, like the steel companies, they didn't tank, but
the union companies didn't prosper either, so now you see truckers
I think mostly driving their own rigs with some -- under some
banner, the banner of a company, and probably with a loan, so I
don't know how much we accomplished in the trucking industry, but I
wouldn't mind finding out. In any event, we had good times, and
there was a lot of very hard work and very long weeks, um, but on
the whole, it was a great era from '67 to the mid-'70s, and I
remember it fondly, and would be glad to answer any questions or
hear any dissents when you get to ask us any questions. Thank you
very much.

DAVID CASHDAN: It is indeed an honor to stand in for Bob Belton.
There was a time in my history at the EEOC where I almost felt even
though he was with the Legal Defense Fund, and I was with the EEOC,
that we were joined at the hip. We spent a lot of time together,
and I plan to tell you about that. But I was at the EEOC in its
first five years. I started there in November '65, and I can truly
say it was one of those settings where I was in the right place at
the right time, and it was purely happenstance that I got
there.

Trying to get a job in civil rights when we got out of law
school was very difficult. First of all, there were very few jobs.
I graduated in '64, Title VII had not been passed, was about to be
passed. No Justice Department had a Civil Rights Division. Legal
Services hadn't started yet, so those jobs were few and far
between.

While I was hunting in this town for a job at the Labor
Department, I interviewed in the Office of Federal Contract
Compliance and the President's Committee for Equal Employment
opportunity, the forerunner of the Commission, and they had no jobs
for more lawyers than they already had, one of them was Tom Powers,
who became a major partner at Steptoe and Johnson, and was very
helpful, I think, even though he was defending management, in
helping to resolve a lot of -- a lot of cases. But he didn't have a
job for me, but I said, "Oh, by the way, do you have a job for a
writer, or -- or for my wife?" And they said, "Why?" And I said,
"Because my wife is a writer," and the next thing I know my wife is
working at the President's Committee for Equal Employment
Opportunity.

When they phased out, it seems the -- I think she helped me a
little bit getting my job at the EEOC, which we sort of switched
roles for the time. We were contrarians. Instead of being a good
wife behind every husband, I was the good husband behind my wife.
Anyway, I came to the EEOC, and it was an amazing place. When you
think this was an agency that was to be toothless, had no power,
and you looked around at who was there, the first thing, they were
dedicated, and everyone was filled with mission. And the talent
pool was beyond belief. The lawyers, whether they were in lawyers'
jobs or not, included, and I am going to mention some names. Most
of you won't know them, but I am going to tell you something about
them, because it tells you something about the force and enthusiasm
that was contagious in those times.

There was a Commissioner Sam Jackson. Sam Jackson was from
Topeka, Kansas. He was the local lawyer in Brown versus Board of
Education, and he was the fulcrum, the center point for practically
every employee that wanted to do and make the Commission an active
hotbed of enforcement, or furthering Title VII principles to make
it work.

There was Charlie Duncan, you may have seen his obit or
editorial in the "Post" the day before -- this past weekend. Mr.
Duncan was a super lawyer. He had civil rights background. He later
became, among other things, corporate counsel in Washington, D.C.
There was Dick Berg from the Justice Department. He was a Harvard
law graduate, he wrote the first law review under Title VII. There
was Cliff Alexander, former Secretary of the Air Force, ran for
mayor in this town, um, Ivy League lawyer.

Um, Cliff was very important in my life, ah, and a super lawyer.
He had been at Arnold and Porter, or went to Arnold and Porter
after us, I can't remember.

There was William Brown, one of the chairmen. There was Pat
King, one of the professors here at Georgetown. There was Fred
Abramson, a former president of the D.C. bar. There was Vincent
Cohen, who had been I believe an All American basketball player,
and who became one of the main litigating partners of Hogan and
Hartson. There was Gerald Frug, who is now a professor at Harvard,
there was Cruz Reynoso, who was, or is, I'm not sure of the title
of the highest court in California, but he is one of their judges.
There was the first female black attorney at the Justice
Department. Before she came to EEOC, she had argued in the Supreme
Court, and she had a most, most compelling and exciting career on
our D.C. Court of Appeals here, and if you want to read some of the
best employment law decisions applying to our local civil rights
act, you read what Judge Mack has written in her day.

And there was Chuck Rishell (phonetic), who became a legend.
There was Beatrice Rosenberg, who came from the Justice Department,
had argued more cases in the Supreme Court than any female at that
point in time. There was Phillip Sklover, who was a law student,
but he is still at the Commission, and he was involved in some of
the most major opinions that you are going to hear about, Griggs
versus Duke Power, I believe Phillips versus Martin Marietta, Phil,
correct me if I am wrong about that. There was Barbara
Lindeman-Schlei, whose name is legendary. She is Schlei and
Grossman, the textbook, and I want to tell you a little bit about
what Barbara did in terms of when she was at the Commission. There
was David Copus, a management lawyer now, but launched a huge
industry proceeding in front of the Federal Communications
Commission saying that they could use their licensing power to
address EEO issues, and there was Lex Prager (phonetic), a former
Foreign Service officer who came and worked with Chuck Rishell, and
then worked in the appellate section here in the Corporation
Counsel's Office, and I can go on and on. But that was the talent
pool, and we fed each other.

We also looked a little different, a lot of us then, not only
than we do now, but before casual clothes were in style. Bill Ed
Brown (phonetic) inherited an office, some of us had fu manchu
beards, some of us wore body shirts, love beads, flare pants, I
mean it was something that we had a general counsel for a couple
months from the Department of Labor, Stanley Heber (phonetic) a
very nice man, but he believed in shipshape and order. He could not
handle us. Just wasn't his thing. Um -- But -- So here was this
contingent of folks that were in love with what they were doing,
and because we didn't have any power, nobody was paying any
attention to us. The hidden fact was that was good, because we
really could do what we want in terms of helping to make the
law.

We had two legal roles that I want to focus on, one, the
Commission had subpoena power, although it was called demands. We
could enforce subpoenas to get documents for our investigations, so
we went into court, and enforced that all around the country, and
with the help of the courts of appeals, we established that you can
get rather broad documentary discovery and statistics in individual
cases, and that became very helpful later on in the private -- at
the same time in the private causes of action, when it came to what
kind of discovery can you get in those cases. Bob Belton was
involved in a lot of cases, and I want to talk a little bit about
what we did with the private cause of action.

We couldn't file suit in our own name, but the private cause of
action was out there to enforce Title VII. So what did we envision
our role? We envisioned our role was to make the private cause of
action work.

So we wanted to eliminate delay. How do you eliminate delay? We
had to deal with, did have you to have an investigation before you
could file a lawsuit, did you have to have conciliation before you
could file a lawsuit, did the charge have to be sworn before you
filed a lawsuit, did there have to be a cause finding before you
had a lawsuit, if you had a no cause finding, did that keep you
from filing a lawsuit? Every one of those silly little issues was
raised in every district court in this country, and every circuit
had to deal with it. We worked our darndest to try to help the
private litigants to get the right answer, which was: You don't
need any of those things. Put it in front of the EEOC, give it an
opportunity to do what it can do, if it hasn't done it within a
certain period of time, you have a right to go to court.

So I spent a lot of time on those procedural issues, and spent a
lot of time in the Fourth Circuit and Fifth Circuit, the Seventh
Circuit. Judge Lay, I don't think I ever argued in the Eighth
Circuit, but I did argue in the Ninth Circuit for sure.

The times change. Courts change. But we got really responsible
hearings from the circuit courts, in terms of helping the private
cause of action to be there and stay there. One of the things that
-- There were certain themes in our dialogue. We played on the
fact, and we used it in all our briefs, the word "highest
priorities," that was a Supreme Court case, Newman versus Piggy
Park Enterprises, it was not an employment case, but it was a civil
rights case where the Supreme Court pointed out that the
vindication of civil rights under the Civil Rights Act in 1964 were
to be accorded the highest priority. So of course anything that we
argued, we told the court should be accorded the highest priority,
and we should get best treatment, and we often did.

Another theme that we wanted to address, besides delay, was the
scope of the lawsuit.

We wanted to make sure that when a litigant got to court, their
lawsuit could be as broad as possible so we help develop the like
and related and growing out of the scope of the investigation
concept, so that we wouldn't be tied to just an eensy teensy weensy
bit of a case. And that continues to be fought and fought and
fought. In fact, but for the most part, there has been a little
narrowing, but in the early years it was very helpful to the
private litigant to be able to litigate things that were like and
related to a denial of a promotion. That was one of the issues we
had to deal with. Another issue that we tried to deal with were
what was -- What did it mean to be an aggrieved party?

You had to be aggrieved in order to file a charge with the EEOC,
and were you aggrieved enough to then come into the court and file
a lawsuit. The first case, or one of the first cases in the Fifth
Circuit, which we helped -- I believe we wrote an amicus brief in,
it was called Jenkins versus United Gas, and the issue was whether
or not if the person who complained of a promotion was promoted
after he filed the charge, would that -- could he continue to
complain that he was aggrieved? Fifth Circuit said yes, he could.
The Fifth Circuit also articulated in that case a theme that you'll
see constantly in the early cases, and that is that employment
discrimination is perforce a class action. It is a class concept.
It requires class proof, and just because someone has been
promoted, that doesn't mean the system of discrimination that
denied him the promotion originally doesn't still exist. And you
have to be allowed to address that, which leads to another theme
that he wanted to address, which is make whole relief. It is not
enough just to give somebody their backpay, but you have to end the
discrimination.

In the first five years, since we didn't have what later came,
which were jury trials, and punitive damages, and compensatory
damages, monetary relief was relatively small for someone who had
been fired for -- who had a low-paying job for a couple of years.
So the main thrust of the litigation that Julius Chambers and his
colleagues and that other lawyers were filing was primarily for
affirmative relief, get rid of the system, the seniority system, if
that is what the issue was, that was keeping people relegated to
certain departments because of their race.

Another problem we dealt with is how many people have to file a
charge, um, to be included in the lawsuit? We maintained that the
one charging party was able to represent everyone else in the class
who was subjected to the same discrimination, without having --
each of them having to file a charge.

Bob Belton handled our case, I believe called Robinson versus
Lorillard in the Fourth Circuit. There was a case before that, Bowe
versus Colgate in the Seventh Circuit, and there was a Fifth
Circuit case involving Crown Zellerbach, all of which said you only
needed one charging party.

These procedural victories, if you want to call them that, are
what made for a viable cause -- cause of action. I want to talk
about few -- a few other little things that happened.

First of all, how did we get involved? We didn't have computers?
Nobody was tracking -- Nobody -- There was no mechanical way of
knowing about when a lawsuit was being filed. Well, the job was not
easy, but it is easier than it would be today, because today there
is thousands and thousands of lawsuits. There weren't that many
being filed then, and they, almost all of them were being filed by
lawyers who were with NAACP Legal Defense Fund, with their
cooperating lawyers down south and around the country, the NAACP,
although it had its Legal Defense Fund, Bob Carter and Herb Hill
didn't want to give that action up completely, and they also were
helping private lawyers to bring cases, and we dealt with them.
There was a Lawyers Constitutional Committee in Louisiana, Richard
Sobel handled the first seniority cases against Crown Zellerbach in
Louisiana. And there was the Lawyers Committee for Civil Rights and
Law, Richard Seymour and Bob Fitzpatrick were down in places like
Mississippi. We kept in direct contact with all those lawyers. We
didn't wait for them to ask for help. We called them up, and we
said, "Hey, Bob, that case you have down in North Carolina, do you
have any motions pending?"

We were being aggressive, and trying to see that the law was
getting -- that we could help these attorneys, and that we could
see that the body of law that was being developed was going to be
expansive, and we were trying to help to get some consistency in
the interpretations.

We dealt with seniority discrimination, and that became the
first brief, where Quarles versus Philip Morris, where the EEOC
filed a brief in its own name on a substantive issue. Prior to
that, we had to go over to David Rose, get him to sign off on a
brief, or his predecessor. After it was seniority, the Justice
Department had not made -- it was a tough issue, had not made up
their mind what they wanted to do. There was a wonderful judge in
Richmond, Virginia that was going to rule on this case. I did
something that I can't imagine that I would do today, I told the
Commission, Chairman Alexander, I'd quit if they didn't file the
brief. It wasn't because of that, but he did agree to file the
brief, and we filed it, and that helped establish the first time
that a seniority system was found violative of Title VII, in -- I
think it was '. We then got into the disparate impact cases. We are
going to talk a lot about Griggs versus Duke Power, how a neutral
criteria can have a discriminatory impact.

We paid attention to statistics, trying to highlight the
importance they would have, and why you needed to be able to gather
them, and we had the power to get it, and private litigants had the
power to do it.

The bottom line was that working for the EEOC in its first five
years, without enforcement power, was an extremely exciting time
for a young lawyer. I think in terms of the movement and the
enforcement of the law, it had an extremely beneficial effect. I
don't think the private cause of action would be as robust as it is
today if we hadn't started without enforcement initially, although
the motivation in Congress was that we would not -- that that
structure was not going to prove to be very effective. It led to
some of the landmark precedential cases for which -- with which the
court is still struggling and sometimes -- sometimes they've
changed their move, and sometimes they preserved some of the
victories that we helped to win. Thank you very much for inviting
me.

(Applause.)

WILLIAM BROWN: Good morning.

One of the things that David touched upon was the, when I came
into the Commission, was what the Commission Legal Department
looked like, and I think he may have understated it. My background
was a Philadelphia lawyer, and you know Philadelphia lawyers are
thought about as being very staid and old-fashioned. But I can tell
you that when I first took a look at the people in the Legal
Department, I thought I was in San Francisco at Haight-Ashbury. I
always said they only had one suit that they shared among them
whenever they had to go about going into the court on those very
few occasions that they did go into court. But the thing they did
say is that I was fortunate inheriting just an outstanding group of
people. You know, sometimes government employees get a hard rap,
and unfortunately it is just not true that they -- they are
perceived by many in the general public as just putting in time,
and not really earning their keep. But I can tell you during my
days at the Commission, there was no harder working group of
individuals than those individuals that I had the privilege of
serving with at the Commission.

And it is interesting how I got to the Commission, and you know
so many times in life, it is not whether you are bright, or whether
you deserve to be there, it is just by a pure fluke.

David mentioned Sam Jackson, who was an outstanding
commissioner. He was a Republican, and of course on the Commission,
it is a bipartisan Commission, so no more than three from one party
can serve, and for some reason he and Cliff Alexander, who was then
the chair, could not get along, and it was clear he was not going
to be reappointed by President Johnson at the time.

I just happened to be fortunate enough to be in a law firm prior
to my becoming a Deputy District Attorney in Philadelphia, a very
small firm in Philadelphia. We never had more than seven lawyers at
any one time. But out of that very small law firm, we got seven
judges, four federal judges and three state court judges.

And one of my law partners was A. Leon Higgenbotham, Jr. Many of
you know that name. He was one of the youngest members to serve on
the Federal Trade Commission, was nominated and confirmed as a
district court judge, as one of the youngest federal district court
judges in the Eastern District of Pennsylvania, and later went on
to become both a judge of the Court of Appeals for the Third
Circuit, and finally the Chief Judge for the Third Circuit, and his
relationship with President Johnson was very, very close.

When they found out that Sam would not likely be reappointed,
sometimes you just are very lucky. I happened to be black. I
happened to be a Republican, although there are not many of those
around even today, and I had had a legal background, and so it was
that Leon mentioned to the President and his administration that
perhaps they might want to look at me as a possibility of becoming
a member of the Commission.

Hugh Scott, who was my senator, supported me in that effort, and
it went on back and forth for just about a year, because as you
might remember, it was at a time when President Johnson was trying
to get Abe Fortas in as Chief Justice for the Supreme Court, and so
when he originally had my nomination, he pulled it back, and was
handing out these and other nominations as a means of trying to
encourage some of the senators to vote for Abe Fortas. When that
fell through, of course he pulled all of those back, and finally
after a good deal of time had passed, had decided to give me an
interim appointment as commissioner on the EEOC.

One day I got a call, I guess in about March or April of 1969,
from the then Secretary of Labor, who I had not met, and who asked
me to have lunch with him. And of course I was flattered and
somewhat fearful of why I was going to have lunch with the
Secretary of Labor. I knew he had been a Senior Vice President for
Lockheed, and so I did all of my homework in trying to find out did
Lockheed have any problems, and what kind of charges did we have
against Lockheed? We had a very pleasant lunch. Nothing was said
about Lockheed, or anything about the Commission. We just had a
normal luncheon where we talked about everything but the thing that
I thought I was there for.

And finally, just about the time when lunch was over, he said,
"Bill, I guess you know that President Nixon," who had originally
withdrawn my nomination, "is considering nominating you for a full
term on the Commission. And when confirmed, will be making you, or
naming you as the chair." Well, there was nothing further from my
mind, but that was the beginning. And as I said, it is -- It is the
things that you don't anticipate out of life that come up about. If
I had planned it, I couldn't have planned it better.

When we got to the Commission, it was difficult because Cliff
Alexander, as you might remember, continued to serve not as a
chair, even after I was finally confirmed, but as a member of the
Commission, and so you had this problem of the people in the agency
not knowing what to call me, and what to call Cliff, because he was
still, to most of them Mr. Chairman, and I was also the new Mr.
Chairman, and so we had a lot of problems with that.

And we had problems with just identification of the agency. We
were often confused with OEO, the Office of Economic Opportunity.
We had a limited number of offices throughout the country, and so
we went about putting together some public service announcements,
and we had a number of individuals who agreed to make these public
service announcements with the idea that EEOC would become better
known, and those individuals who had charges of discrimination
would know that there was an agency they could go to, to have those
issues dealt with.

And in fact, one of the people who made one of our public
service announcements, unfortunately he just passed, was Ray
Charles, I don't know how many of you saw the ones he made.

And so we were very fortunate in that. And in the beginning, we
had battles, things that we all take for granted today. One of the
biggest battles was around the area of just the -- the ads that
would appear in newspapers. Remember the old days you had
male/female? You had white and colored, that is what we were called
in those days, or colored or Negro. And we dealt with that issue,
and finally got the newspapers and most of the major employers who
were looking for individuals to finally change that. We take that
as a granted these days.

We had the battles with the airlines, the -- what we call flight
attendants today, they were call stewardesses in those days, and
they had very strict regulations as far as the women who were
concerned. There were no male flight attendants. The women, once
they reached the age of 32or 35, depending on the airline, had to
resign.

They had certain weight restrictions, um, and it was
interesting. They could not be married.

And so we had a battle with them. You might remember, I guess it
was -- I can't remember whether it was Pacific Southwest Airlines
used to have the tag line, "Fly me, I'm Jane," or some such thing.
Or, "We really shake our tails for you," and it shows a nice young
flight attendant. And we had a battle with that, and they finally
agreed to change it.

I think one of the, I guess, major accomplishments during the
time that I was there, was the AT&T case. As you remember, we
did not have enforcement powers in those days, and so we filed
trying to piggyback on the FCC's hearings on AT&T, on their
rate case, and while the hearing examiner refused to allow us to
intervene in that case, he did agree that we would have a separate
hearing on the question of whether or not there was discrimination
going on at AT&T.

If I had known just how difficult it would have been, perhaps we
would have not been, um, able or even inclined to take on the
litigation against AT&T. I remember saying to those individuals
who compose our AT&T Task Force, "If I were AT&T, I would
just back up a truck and dump all of the hundreds of thousands of
pages of documents and say here, 'Go at it.'" And I was concerned
about that. It was one of those things I think at the time that I
was at the Commission, I had more litigation experience than
anybody in the Commission.

I had been in practice since 1955, and had tried literally
hundreds and hundreds of cases, many of them -- most of them jury
trials.

But when we had the AT&T case, they did in fact do that. And
as it turned out, we had recruited a lot of law students from all
over the country, we even brought in law students from Puerto Rico.
And it is just amazing how dedicated these young individuals were.
I would come into the office, and they would be there on Saturdays
and Sundays and holidays working away through this enormous amount
of paperwork; and some of the best testimony came out of the very
documents that AT&T turned over to us.

The head of the AT&T Task Force was Charlie Wilson, who was
I guess one of the few people who did have some litigation
experience. David Copus was, of course, there, and others, but most
of whom did not have any real litigation experience. But they put
together just an unbelievable case, and we tried our portion of the
case before the hearing examiner, and the most important individual
was a fellow by the name of Bob Lilley, who was then the chairman
of AT&T. Remember, AT&T in those days had separate
operating companies, each with their own president. And every once
in awhile, our two groups, the AT&T group and EEOC's group,
would get at loggerheads, and he and I would have to meet to try to
see if we couldn't push our various groups along towards a possible
settlement. Well, obviously he didn't want to be seen coming to the
Commission, and I didn't want to be seen going over to AT&T,
and so AT&T had a suite of rooms at the Sheraton up on K
Street, and I would sneak over there, and he would sneak over
there. We would meet with our people and try to push them together
to get this thing resolved.

And then it finally got down to, I guess it was in January of
1972, and at that point in time I got a call from Lee Satterfield,
who is an attorney here, who was then one of the senior attorneys
at AT&T here in Washington, and he said, "I had given the
deadline as to when this agreement had to be signed." He said,
"Bill, Bob has asked me to ask you whether there is any leeway
whatsoever in the deadline that you've set." And I told him, I
said, "Lee, there is no leeway whatsoever."

And he communicated this back to Bob Lilley, who then had to
convince all of the presidents of each operating company that it
was in their best interest to resolve this matter informally.

And so it was that on the very next day, I believe it may have
been about the 18th of January, that people from AT&T flew
down, and we signed off on that historic document.

And you remember the flak that AT&T took. They were the
largest single employer in the country, other than the Federal
Government.

And many of the major corporations had the feeling, or made the
statement that they had been sold out. And as it turned out, that
was one of the greatest achievements I think of the agency at the
time.

And all of the credit really goes to the extraordinary work of
our Legal Department, and all of those individuals who came in to
help out in our prosecution of that particular case.

It was interesting that just about a year later we did get
enforcement powers, in 1972, and what I had attempted to do was to
set up AT&T type task forces. The idea was that we would have a
group of individuals that would be able to handle major charges,
and I filed, I think, five Commissioners' charges, I know one was
against General Motors, one was Ford, one was IBEW, one was Sears,
and I can't for the life of me remember what the fifth one was.

UNIDENTIFIED VOICE: General Electric.

WILLIAM BROWN: General Electric. You're right. Thank you.

It was my thought that what we would do was to handle each of
those individual groups the same way as we had with AT&T. We
would go after them, we would try to conciliate, we would try to
work out a settle; but failing that, now that we had enforcement
powers, we could go into court. So we set up five litigating
centers throughout the country. I think it was Philadelphia, San
Francisco, Atlanta, Chicago, and Denver.

And one of the ironic things is everybody said, "Why the hell in
Denver?" Because the area they would have control over and
responsibility for was pretty much the southwest, which included
Texas, and Louisiana, and some of the other areas. The reason why I
decided to put it in Denver was because of politics. I remember
testifying before a committee on our budget, and I'll get into that
a little bit later, and there was a document that the head of the
committee kept showing to me, and asking me about, and I for the
life of me couldn't remember ever having seen this particular
document.

And I kept saying to him, I said, "Well, Mr. Chairman, if you
show it to me, I might be able to recall this document." And after
a battle back and forth about whether I was going to be shown the
particular document, he finally just threw it at me, and said,
"Here it is, read it."

And I read it, and I can tell you, nothing in that document
looked familiar.

I learned about three days later that into the office came the
original of that document. It was obvious that someone down in
Texas had sent this document, without having sent it to me, to the
committee.

And I decided that if I were to put one of the litigating
centers in Dallas, that there would be so much political pressure
brought to bear on our employees down there, that I didn't feel
that would be fair to them, nor to the charging parties or to the
Commission itself, so it was that we put it up into Denver.

We put together the resource allocation strategy whereby we
allocated about 60 percent of our resources to handling these major
cases.

Another 20 percent we thought should go towards looking at the
major corporations in certain regions.

And then another 10 percent would be used for individual
charges, and the final 10 percent would to be used to establish
case law that we thought was required.

It was an interesting time. And during that time, that was my
remaining time at the Commission, I left there in December of 1973,
there were a number of things that did occur. Dave Rose has already
mentioned the steel cases, but somewhere along about the middle of
1973, I learned that there had been a series of meetings between
representatives from the steel industry and people from Justice,
and from the Department of Labor, and oddly enough John Powell, who
subsequently succeeded me as chairman of the Commission, John had
not been nominated at that point in time, and it was absolutely
inappropriate for him to be sitting in on these meetings because,
of course, of the confidential requirements of Title VII. And I
found out that my own general counsel at the time was participating
in these meetings. And when I learned about it, I wrote one of my
intemperate letters, as I often do, indicating that I could not
imagine why the major unit for employment enforcement was not a
part of this, and namely the chairman of that agency. And of course
everybody was embarrassed.

I had got an invitation to the next meeting of the group, and
the thing that disturbed me more than anything else is that there
was no discussion at that time of any backpay, as far as the steel
industry was concerned, and I remember saying to them that, "Like
it or not, you all can sign off on this agreement, but I will not
sign off on it. And I will go after you with the Commission's
resources." Well, they were smart. They didn't have anymore
meetings while I was still in the chair, and they subsequently had
a meeting after John Powell was nominated and confirmed.

And I still to this day believe that that settlement was not an
appropriate settlement of the problems that were in the steel
industry.

During the years when we had no enforcement powers, one of the
ways we went about trying to get the public to understand what the
problems of discrimination were, was we held a series of hearings
throughout the country. There was one in New York just prior to the
time that I came to the Commission. When I was a commissioner, we
had one in Los Angeles, and then subsequently we had one in
Houston, Texas, and I had asked our research unit, which was just
an outstanding group of people, I see Al Goleb (phonetic) here, who
knows this quite well, and he did a fantastic job when he was here
at the Commission. We decided on Houston based upon the research
that was done by our Research Department, and I asked him look at
every area. I asked him to look at the number of charges we had,
and to give me the three or four cities they felt would be the best
place to have a hearing, given the problems that would exist in
that city, and they selected Houston. And the Commission approved
our hearings in Houston, and just before going down to Houston, I
received a call from Vice President Spiro Agnew, who said that the
mayor of Houston, I believe whose name was Louie Welsh at the time
was upset, that we were coming into his city, and that he wanted to
speak with me.

And the Vice President asked if I would call him, and I assured
him that I would. I did call him, and I said, "Mr. Mayor, I
understand you have some concern as to why we are coming into
Houston, and I would be more than pleased to give you all the
background information that led us to conclude that Houston would
be the appropriate city for us to bring our hearings into."

He said, "Well, Mr. Brown, I talked with a number of people, and
they all tell me that if I were to ask you to not have the hearings
in Houston, that there is no way in the world you are going to
change your mind."

And I said, "Well, Mr. Mayor, if that is the reason for your
call, you would be wasting your time and my time," and so that was
pretty much the end of it. We did have those hearings, and it is
amazing as I look back on it, we had major heads of large
corporations coming in to tell us what great work they had done in
advancing the cause of equal employment in the Houston area.

And as you listen to the testimony, you were just -- at least I
was, appalled at the temerity for them to say there was no problems
in the Houston area.

We had people who came in to testify about all the great things
they had done within their own corporations, and yet when you began
to question them, they admitted there were separate restroom
facilities still, they admitted that they still had separate
picnics for whites and for non-whites. They admitted that there
were all sorts of things that normally you would have thought any
reasonable person back in the '70s would have recognized as being
blatantly discriminatory. They just didn't get it.

And we left there -- We, in fact, had a film made of the Houston
hearings. We had asked of Anthony Quinn, who was a Tony award -- an
Oscar Award winning actor, if he would moderate the film, and he
saw some of the films that we had made of the hearings, and was so
impressed with what he saw, that he said, "I will do that, but what
I will do is I will come in with my own film crew, and we will
interview these various individuals, and we will make a film of
it." And out of that came the film "Voice [of La Raza]" and we
filmed it, and had a premier viewing of it here in Washington, and
Tony Quinn came in, and spoke eloquently about the problems of
discrimination, and how we had an absolute need to eliminate
discrimination in all of its forms.

I look at that during the period that I was at the Commission,
and I can honestly say, and I don't think anyone can really
disagree, that we have made indeed tremendous strides. Things that
we just take for granted now. You walk into a bank, and you see
minorities as tellers, and my own father, who worked two jobs his
entire life, the only jobs that he could get would be one as a
janitor in one of the banks. You look at the department stores,
there were very few department stores that had anyone who was of
color selling the major items.

In Sears' case, you had what they call big ticket items, and
little ticket items. The big ticket items were the ones handled by
the males, and they were selling things like sewing machines and
refrigerators and washers. I would imagine very few of them knew
very much about any of those things. But they carried the largest
commissions.

And then on the other hand, you had the women who were selling
the threads and the dresses, and the very small ticket items. And
so it was that you look back at the changes that have been made,
the police departments, the fire departments across the country,
the airlines, you get on an airline today, and it is not surprising
to see a woman as the captain, or a minority sitting in the first
officer seat. But I could still say that given all the advances
we've made, we can't be complacent. We still have a long way to
go.

And for those individuals who think that affirmative action and
discrimination are no longer an issue, I just say to them, "You are
just living in a dream world." And when you look at the Ward
Connellys out in California, and his positions, I don't know how
people, particularly people of color, who have seen the ravages of
discrimination, and who have seen, even up to this day, the fact
that there are still significant areas of discrimination, can feel
that the -- that the journey towards true equality in employment
and in other areas has been achieved. Thank you very much.

(Applause.)

WILLIAM ROBINSON: We will now take a 17-minute break, and we
will resume speaking precisely at 11 o'clock. Please enjoy your
break.

(Brief recess.)

WILLIAM ROBINSON: If I could ask everybody to please take their
seats. And for those of you who are still making your way to your
seats, could you do so quietly?

I'd also like the person in charge of audio visual to please
turn the mike up a little so that our transcriber can clearly hear
all of the speakers and the comments and questions.

With those preparatory remarks, I'd now like to invite Julius
Chambers to the mike.

JULIUS CHAMBERS: Thank you. It's a pleasure to be invited to
participate in a gathering with a distinguished group of lawyers
like this, lawyers I've always looked up to who have led the fight
for implementation of Title VII. It's interesting, though, as time
passes, how people age.

(Laughter.)

WILLIAM ROBINSON: Not you, Julius.

JULIUS CHAMBERS: I never would have thought that some of my
friends would lose the top part of their hair, or that some of them
would get gray, but they all have shown that passing time affects
us.

You know, you step back, and I have been in a lot of these
programs this year, particularly with the commemoration of Brown v.
Board of Education, and I keep asking two things: One is, um, did
these things really happen the way we said they did?

And second, what are we trying to get out of these gatherings?
Why are we here?

Well, I remember back in 1964, when the Civil Rights Act was
passed, and I remember the private community, the civil rights
community, and I remember the enthusiasm that we had, because we
thought that we finally had a bill that was going to really open up
opportunities for minorities and women to get jobs from which they
were excluded, and I also remember the experience I had when I
heard the announcement of Brown v. Board of Education, and how I
had hoped, at least, that we would suddenly see integration of the
schools.

And I saw the passage of Title VII pretty much the same way as I
saw Brown.

And I had, I think, pretty much the same experience. And as I
look at Title VII in 2004, I wonder if we have really done what I
said we had done in a program with Barry Goldstein, and now Justice
Clarence Thomas, repealed Title VII, and stripped it of all its
enforcement provisions.

When we started with Title VII, I remember efforts to try to
submit as many charges to EEOC as we could pull together.

Jack Greenberg remembered that it was a thousand charges we were
trying to file with EEOC on the first day of the effectiveness of
Title VII. We ended up with 850. Some of those charges came back to
haunt us, but we wanted the public to know that there were
provisions that now provided protection for minorities against
discrimination in employment.

And so we had a contingent of students and ministers and members
of the NAACP and other groups to encourage people to file
charges.

And as I listen today to discussions about EEOC, and the
Department of Justice, and others, I have to worry about our
appreciation of the plight, or problems, that the private claimant
went through. And you have to look back at what you would have done
as a black employee in the south or the north trying to file a
lawsuit against your employer, and allege that your employer was
denying you a job opportunity because of your race. Would you have
a job the next day?

Another problem that we encountered was how do you pay for this
litigation? We passed these statutes, and we say it is prohibited
for an employer to discriminate against people based on their race
or color, and then we provide that if you bring a lawsuit and win,
you might be able to recover attorney's fees.

Who is going to pay for you to get to that point?

How much does one of these lawsuits cost?

My estimate back then was that it would cost us $25,000 to
litigate an individual case. Today, with the hurdles the Supreme
Court has established, it costs us about $100,000 to litigate an
individual case. If we add a class action proceeding, the price
goes out of the roof.

Where are you going to get this money to litigate? And how many
people did we turn away who had legitimate claims of employment
discrimination because they could not afford the cost for pursuing
a claim?

Remember back, as has been made clear, EEOC did not have
enforcement authority, and we had a number of people, 850, we had
filed charges for, who were without an attorney, or funds, to
prosecute a claim of employment discrimination.

We then faced the hurdle of what do you have to do to get in
court? We have the statute that talks about filing a charge with
EEOC. Must I file a charge with EEOC to get into court? How long do
I wait for EEOC to process the claim? And suppose the EEOC doesn't
process the claim?

I file a charge, nothing happens, do I then go to court, or have
I exhausted the appropriate administrative procedures?

What happens to me after I file a charge while waiting for EEOC
to process the charge?

Do I keep my job?

If I'm fired, what am I going to do then?

Well, they say 704(a) says you can't retaliate. Sure. Let's
suppose I am fired. Is 704(a) self-executing, or must I wait and
work or live without a job?

What happens to my family?

Let's suppose that I have exhausted all of the required
procedures, what do I have to prove to establish a violation of the
Act?

Do I have to establish that an employer sat down and decided to
discriminate against me because I am black?

Or are there some means by which the court will infer
discrimination from certain actions of the employer?

I remember a case we had involving teachers in our efforts to
desegregate the public schools in Carolina. We lost all but three
black high school principals in the state of North Carolina.

We went from 315 to 3. Is that enough to show some
discrimination, or for a court to infer discrimination?

We had an earlier case, and I am mentioning this case because it
is important to appreciate that in proving discrimination in
employment, the private parties, at least, had to rely on a lot of
precedents from other areas. And so in a case out of Denver, where
the court inferred that Denver's schools were segregated because a
significant portion of the schools were intentionally segregated,
we could infer discrimination based on the demise of the number of
black high school principals in North Carolina.

Would that same thing apply to other practices or other
venues?

We then knew that if we could prove that an employer decided to
exclude African Americans from various job positions, that that
would be a disparate treatment that ought to establish a violation
of Title VII, and so we were worried then how many different
methods of proof do we have for establishing a violation of the
Act?

We then worried about what happened once we prove a violation?
What kind of relief? Could the court order that I be reinstated in
my previous job? Could the court order that I be promoted? Would
the court bump a white employee and put me in my, quote, rightful
position?

Would I be entitled to backpay, or front pay, or damages? These
were some trying issues that we faced at the beginning. And we
tried, as private litigants, because we had concerns, quite
honestly, about the extent to which EEOC would be able to process
Title VII. We had concerns about how the Department of Justice,
with the changing administrations, would be able to enforce Title
VII.

And we felt, rightly or wrongly, that we were the only ones who
were going to be able to enforce Title VII effectively, and we
became extensively involved.

We also knew, though, that in getting involved, or becoming
involved, we would have to find funds to help underwrite the cost
for litigation.

Um, if my estimates for the cost of an individual case are
correct, and I believe they are reasonably correct, it would be an
expensive undertaking, and it was with the passage of Title VII
that the foundations began to fund civil rights groups to help
underwrite the cost for implementing Title VII. And that was a real
great savior for victims of employment discrimination. We did have
some great lawyers working with federal agencies who had real
commitment. Some of them are sitting here on the panel; and they
did what they could. But I remember, when we were litigating an
issue about a class action, and I tell you, in order to process as
many of these claims as we could, as efficiently as we could, every
case we filed was almost a class action. We filed Griggs v. Duke
Power. We had 14 employees working at Duke Power at the time at
this particular plant. Thirteen of them became named plaintiffs,
and we made it a class action, and it was certified as a class
action. Fortunately, the judge didn't worry about numerosity.

We filed Albemarle Paper Company, and got many of the black
employees to join in the litigation, and sought a class
certification, and the judge worried not only about numerosity, but
also about commonality, because the employees that we had were not
operators of paper machines. They worked in the wood yard, and how
could a wood yard employee represent an operator of a machine?

Well, that was one of the most interesting cases for me to get
involved in with Bob Belton. We knew the judge didn't like us. And
I said, "Bob, I will be the bad guy, you be the nice guy, you
communicate with the judge, and I'll make him angry," and so I did,
I thought, a pretty good job.

(Laughter.)

And sometimes when you are angry, you make errors in your
rulings, and you overlook a lot of the issues.

Well, that was an instance, so we had a number of other class
actions, and I will tell you that of those charges that we filed, I
was litigating a case called Lee versus Coal Mills, and the judge
asked my plaintiff, "Didn't you sign this charge?"

And the plaintiff said, "No, judge, I didn't sign the charge.
Somebody brought that thing by the house and told me that I ought
to get involved, and I wanted a better job." He said, "Well, you
got a lawyer," and he said, "I never saw that lawyer before."

Well, fortunately this judge didn't cite me for barratry or
champerty, we moved on with the case, and we got a favorable
decision.

I assure you that there were a lot of other cases in that 650 or
950 - 850 that we had, who had similar experience.

The court, though, began to cut back on class certification, and
why did it?

To me, it was part of an effort to strip Title VII of the
provisions needed in order to ensure effective enforcement.

We litigated Griggs v. Duke Power. We thought that we ought to
be able to show discrimination with a test. Why does everyone have
to take a test? And there were a lot of issues that came out of
that. And we got a favorable decision out of the U.S. Supreme
Court.

And I think that case really helped not only in the employment
area, but in many other areas as well. And we had disparate impact
as a method of proving a violation of the Act. And what happens,
the U.S. Supreme Court comes back a few terms later, and decides
that we ought not to recover damages with disparate impact. Why?
Well, we had a different set of judges. But we stripped Title VII
of some meaningful provisions.

And then we had this fiasco of the Court in 1989. After years of
litigating and precedents that we were able to established to make
it possible for a private plaintiff to prove a violation, the Court
decided that it ought to make it more difficult, and it reversed a
number of the precedents that had been established between 1960 and
1989.

Why? Because we had a different court. In 2004, I am back in
private practice, I see a number of claimants with employment
discrimination cases, they are facing the same kind of problems,
Dorothy Robinson, Joe Moody, and many others faced in 1965. They
don't have the money to litigate. They don't have any lawyers to
bring a lawsuit. They don't have precedents in the court that would
make it easy for them to establish a violation.

It is good that we are celebrating or commemorating the early
stages of Brown, or the stages of Title VII. Hopefully out of this
conference, we will, through either charging everyone to become
more involved with Title VII, or charging all of us to help
Congress appreciate the need for more legislation, um, be able to
renew what we had in 1964 and 65, and provide a real meaningful
provision to help victims of discrimination establish their rights
to equal employment. Thank you.

(Applause.)

JUDGE LAY: I'll try to be very brief, because I think you want
to hear from the panel on a discussion basis, but a few things I
wanted to remind you of. It took this country 175 years to pass
legislation to say that racial discrimination was unlawful.

It took 64 weeks in the Congress of the United States, commenced
by President Kennedy, and followed up by Senator Lyndon Johnson, or
he was senator, President Lyndon Johnson, to effect passage of the
Civil Rights Act.

The people that really deserve a great deal of credit for the
passage of the Civil Rights Act were the Senator Everett Dirksen,
Senator Mike Mansfield, and Hubert Humphrey. I believe it was
stated that the only way that they got cloture was by a very close
vote. But cloture actually was passed by the Senate 71 to 29, and
it took weeks to obtain the votes to get it to that point.

One of the interesting things was, and this shows you some way
how give and take happens in the Senate of the United States, they
got Senator Carl Hayden in from Arizona to see the President, and
the President said, "You know, Senator Hayden, I think you need a
flood bill you are working for in Arizona." And he said, "Yes,
yes." He said, "Well, I'll push legislation for that if you would
vote for cloture." So that is the way that cloture came about,
because it was a very -- at first they lacked the vote. Cloture
means simply that they get a hundred hours to debate it, and that
cuts off the filibuster. And before that, they had filibustered on
the Act from May through June, and without cloture, I don't think
the Civil Rights Act would ever have been passed.

There is a wonderful book called "The [Longest] Debate," it is
written by Barbara and Charles Whalen. If you haven't obtained it,
please do, because it is a fascinating book. It is about the
passage of the Civil Rights Act. And it's really -- It really tells
you all the details, and you'll get a vision of the Senate of the
United States in a little different way than I do.

And in the court of appeals, we deal with each case on an
adversarial basis. So we see different perceptions of how different
people react, and judges have different perceptions of the
evidence, of the Act itself. And it reminds me of a story that I've
heard that there were three men that went out to visit the Grand
Canyon, one was an artist, one was a minister, and one was a
cowboy. The artist looked down on the Grand Canyon and said, "This
would be the most beautiful picture to paint," and the minister
looked down and said, "This is one of God's greatest
creations."

And the cowboy looked down and said, "That would be a hell of a
ditch for a cow to fall into."

So you see, you have different perception about these bills, and
also about the evidence.

And I have been asked to mention McDonnell Douglas. We passed
that, not knowing it was going to the Supreme Court. There was a
period of dissent by my predecessor, Harvey Johnson. They, the
primary holding of the Act is that he had filed, Percy Green, had
filed, a charge with EEOC, on racial discrimination for a job, and
EEOC did not find reasonable cause, and so the District Court,
Judge Meredith, held that he couldn't raise that question. When it
got before us, McDonnell Douglas argued that it had been tried by
consent, and that was the farthest from the truth, we had no
discovery on it. I think I quoted a passage from an old Hebrew
statement that they tie our hands behind us and tried for not
fighting back. And I think that was so true in that situation.

Well, the Supreme Court agreed with us, that it wasn't necessary
to go ahead and have a reasonable cause finding, and that Green
could raise this question. Of course Percy did a few other things.
I was telling some of the panelists I was trying to run down what
happened to the Green case after it got remanded, and I tried to
get hold of Louis Gilden, who was the lawyer for Percy, and had
tried many civil rights cases, and found out he passed away three
years ago, so I called Percy Green, and I talked to Percy, and he
told me that after the case was remanded by the Supreme Court, um,
someone burned a cross on Judge Meredith's lawn, and so Lou Gilden
felt under the circumstances he should recuse himself. I think the
district judge should have recused himself, but he didn't. And they
got another lawyer in to try the case, and Percy lost, and that was
the end of it. They didn't try to go back up.

But Green versus McDonnell Douglas, I think, helped hundreds of
thousands of people, the paradigm that has been used in that, is
that all a black person has to show is that they are qualified for
the job and they are black, and Percy did that. So we said that he
made a prima facie case. The employer came in with a defense that
he participated in stall-ins and lock-ins of McDonnell Douglas, and
you've probably read it, and Judge Bright, who wrote the opinion,
said that that was all subjective on the part of the employer, and
that they couldn't raise it.

Well, the Supreme Court didn't like that language, said that
they could. But they adopted the paradigm of setting up what the
prima facie case was, the defense, and then the plaintiff has an
opportunity to come back and show that the defense was pretextual,
and I think that is a basic rule that governs most of these cases.
Now one thing bothers me, and I think it bothers many people, and
perhaps this shows you the change of perception.

I just came from San Francisco, where I sat a week with the
Court of Appeals out there, and in the paper on Friday was a
statement by Barry Bonds, a ballplayer, said he didn't like to play
in Boston because of racists. There was a statement by an
outstanding lawyer, and I wish I could remember his name, he is
well known, who said that America is just as segregated as it ever
has been, and that there has been no gain, despite the passage of
the Civil Rights Act. Well, that is a perception. I -- I would
disagree with that. I think we have made some tremendous strides,
but I do feel there is still a good deal of segregation in the
country, and it is -- it is a matter that perhaps, in light of what
is going on in the country and the world today, it is kind of put
in the background, but I'm concerned about what the courts are
doing, and I did a little statistics on our court. We've had seven
recent appointees, and most of the old court like mine, like me,
have turned old, and we sit back, and we don't have a vote on many
of these cases en banc. But I -- The statistics I'll give you,
since April of 2003, we have heard 90 civil rights cases. Sixty-six
cases were affirmed on summary judgment for the defendant; four
cases were tried by a jury in favor of the plaintiff in our court,
reversed. So out of the 70 cases heard, it seems to me that is a
pretty startling statistic, and I think you might find that around
the country. And maybe it is the wrong word to use, but I think
that the courts of appeals have turned very conservative, and we
see cases today that are not really in the spirit of what the Civil
Rights Act intended to do.

There was a case just written by two of our judges where a
burning cross was put on the wall of a place where a black man
works, and his name is written on the wall, but some distance from
the cross. Our court held that that was not proper evidence against
the employer, because there was no direct connection between the
black employee and the burning cross.

I -- I have -- I have no vote, but, um, I am trying to get those
that do have a vote to change that case. There was a very, very
strong dissent by Judge John R. Gibson, but I think that kind of
sets the attitude of many judges that are on the courts of appeals,
and I know that other circuits are having the same problem. So I
think it -- I don't know what the answer is.

I think the answer lies in having stronger cases, plaintiffs
doing more than just showing a prima facie case, and I -- I think
the courts are very willing to go on with gender discrimination
more. And the Supreme Court has written a great deal on that, we've
written a great deal on that, and I've seen some reluctance by some
judges about that, but I think they are much stronger on gender
discrimination, which I think we are going to talk about tomorrow,
than I do on racial discrimination, and I'm not sure why that
is.

But I think it requires the spirit of people like yourself,
being the hard workers in the field, better lawyers, to try to
obtain a reversal of that trend. Thank you very much.

(Applause.)

WILLIAM ROBINSON: I want to thank the panelists for wonderful
presentations, um, and I want to give the panel a total of five
minutes to respond or react to any comments made by other members
of the panel. Mike, you got a comment or reaction to anything you
heard?

MICHAEL GOTTESMAN: Yeah, just a couple of very small things.
Lest you think breaking the filibuster in the Senate wasn't a
cliffhangar. Judge Lay accurately reported the vote 71to 29. Sounds
like a rout, doesn't it? But in those days, in the Senate, to break
a filibuster you needed two-thirds of all the members of the
Senate, which means you needed 67 votes, So they got 71 finally to
break the filibuster.

Think about the arithmetic. The senators from 13 states of the
confederacy, if you will, were guaranteed votes against cloture,
that is 26 votes, that left a margin of seven. If you had more than
seven other people in the Senate who would not vote to break this
filibuster, it couldn't be broken, and as he said, eventually there
were only 29 votes, that means three senators aside from the
southern senators voted for cloture.

The other thing I wanted to do is give credit where it is due
our moderator, Bill Robinson. I think Bill Brown's account of how
the resolution of the steel industry consent decree didn't take
place until after his watch, when John Powell had succeeded him, in
order, he suggested, to avoid the steel industry having to pay
backpay, overlooks the fact that in fact the steel industry
required some 36 million dollars or something in backpay, and the
reason it did is because the EEOC's principal negotiator for the
steel industry consent decree was Bill Robinson, who was, I have
got to say relentless, he wasn't letting anybody leave that room
until a big pot of backpay went on the table, and he got it. It
doesn't sound like a lot of money by today's standards. It seemed
like an awful lot back then.

WILLIAM ROBINSON: Thank you for those kind remarks, Mike.

And during the course of the negotiations, thank you for your
help.

WILLIAM ROBINSON: Dave Rose, react to what you heard?

DAVID ROSE: I'm - I have some of the same feelings as Judge Lay
about the appellate judges. I -- There is -- The only remedy for
the problem -- There is no remedy for people who have already been
appointed. They are going to stay, except possibly for one judge
who was appointed in a 10-day recess, before whom I appeared
recently, and who ruled against me in an age case.

But I think the -- If there is a remedy at all, it is a new
president, and the president that will appoint judges who are open
to what the facts of the case are, and what the statute is that
they are construing, and that is something that used to be very
common. It is not as common as it was, so I don't - Otherwise, I
would tend to agree with his assessment, that most of the circuits
are not open to ruling for plaintiffs in the greater majority of
cases, even some of the cases being quite strong.

WILLIAM ROBINSON: Let me, as moderator, just comment that we are
not becoming political here, we are, rather recounting statistics
collected by noted scholars --

(Laughter.)

-- that chronicle the difference in frequency of ruling for
plaintiffs in more recent years compared to the early years, and
remember our focus here is on the early years of Title VII, um, and
what was accomplished during that period of time.

David, you want to react to anything you heard?

DAVID CASHDAN: Yeah, I'd like to comment on a couple things.
Julius talked about cost of litigation, and he talked about what
kind of relief do people get when they get it?

Something that really changed, in terms of the enforcement of
Title VII since the early days. When I started at the Commission,
right after I left the Commission, there were no private lawyers
doing any of these cases, except for those few civil rights groups,
and wherever they could, they found some funds.

Today we now -- It doesn't include all of them, there are --
There is a group of plaintiff lawyers, 2000 strong, and they spend
their whole practice is representing people under Title VII, and
they are getting some relief, along with the Commission when it
does its own cases, but the relief has changed, for the most part,
in the individual case. In the early days, compliance, getting rid
of discrimination, was really the heart and soul of the private
litigation, whether it was articulated as an individual case, or as
a class action.

With the enactment of the stronger remedies under the Civil
Rights Act of 1991 amendments, with jury trials, compensatory
damages, punitive damages, with local statutes that have those same
remedies, um, cost isn't quite -- The cost is still the same, but,
um, frequently, and partly it may be because getting summary
judgment is often so difficult, cases turn very quickly into a
mediation session or a settlement session talking about money, you
know, how much is it going to cost us to get out of this case, how
much money can we give to our charging party, and for some people
who money is a great solvent, solution, but there is virtually you
can count on your finger the number of settlements you get, or
court orders you get with a relief that really involves something
that goes towards the discrimination that caused the problem, and
that is something that we all need to keep our eyes on.

There was a mention by Bill Brown of commissioner charges, and I
am glad he mentioned it, because commissioner charges in the early
days, particularly, were a way in which we could, even if we didn't
have charges, or we had people who didn't want to come forward,
that we could begin the ball rolling and begin to lay the predicate
for some appropriate litigation by the civil rights group.

And finally I want to share a little anecdote involving my
history in relationship to the AT&T case, because it is one I
frequently tell.

I left the Commission just before those proceedings were filed
to join a public interest law firm, and as a result of that, um, I
had the good fortune of representing the amicus parties, the NAACP,
the NAACP Legal Defense Fund, NOW, NOW DEF, there may have been a
few other groups, and after the first day of the proceeding, my
wife Linda was calling home to talk to her mother, and she
recounted how exciting this FCC proceeding was, and that David was
representing all of these civil rights groups, and there was a sigh
at the other end of the phone, and my wife asked, "What's the
matter?" And she said, "Oh, I was just wondering whose son-in-law
is representing AT&T."

WILLIAM ROBINSON: Bill?

WILLIAM BROWN: I think that the one thing that strikes me,
particularly with the 1970 -- I guess the 1972 amendments, but also
the 1991 amendment, and Dave has already touched on it, and that is
that there has been a tremendous change in the types of individuals
who are representing plaintiffs in these cases. Ah, in the -- In
the, what I would call the old days, I'm a dinosaur, so in the
olden days, most of the attorneys representing the charging
parties, the plaintiffs, were the traditional civil rights lawyers,
and their major concern was not money, but rather changing the
system, making sure that the systemic kinds of discrimination was
corrected, eliminated.

Now, unfortunately, what you see is that it is the more
traditional personal injury trial lawyers, and let me hasten to say
that in my early days at the bar, I was a personal injury trial
lawyer, and so it is not solely on knock on them, but you know
lawyers who are much more inclined to worry about how much money
can I get out of this case, rather than can I make some significant
changes in the way that this particular employer does business? And
I am not sure that is a good thing.

We read about these tremendous settlements in the hundreds of
millions of dollars, but I'm not sure that that is reflected in the
elimination of many of the areas still that I would view as being
examples of systemic discrimination.

One of the major areas in the change that was brought about
under the '72 amendment was for the first time we brought in, and
had authority over universities and colleges, and I can remember
calling together, oh, I guess about 15 or 20 college presidents,
and explaining to them the new legislation, and how they would be
now subject to it.

And you heard all this talk about academic freedom. And it was
almost like I was committing heresy when I suggested to them that,
one, they were going to have to disclose the salaries of all of
their professors, and, two, we were going to take a very critical
look at the tenure of professors.

We all know that historically women, particularly, have been far
underpaid for doing the same kinds of work as the -- as their male
counterparts in the colleges and universities, and they had a much
more difficult time obtaining tenure, as indeed had many
minorities, and it came to pass that I was right. But it is
interesting that the attitude of some of those college professors,
deans and presidents, that they felt that they were outside the
parameters of the new regulations under Title VII. And now we have
seen significant changes in the makeup of the colleges and
universities on their faculty and in their tenure track.

WILLIAM ROBINSON: Julius, you want to say anything?

JULIUS CHAMBERS: Just quickly. I, in practicing every day, have
become much more concerned that we are returning to that stage that
we were in years ago. I have never seen people so intolerant and
really so racist as what I have seen in the past few years.

Um, I watch schools resegregate, I watch employers much more
reluctant to really provide opportunities for employees. We have
had some progress, as Judge Lay has indicated, but we seem to be
returning to where we were, and unless there is some renewed effort
by all of us to make sure that we continue with what we were doing
beforehand, I am afraid that we will have many more problems, and
some of those that we described today will be repeated.

WILLIAM ROBINSON: My comments. Dave Rose speculated, or
questioned how much good the trucking industry litigation had done.
Well, um, back in 1970, Mike Baller (phonetic) and I brought an
Atlanta class action lawsuit against Yellow Freight. Steve Murphy,
the general counsel, called us up and said there is only one thing
wrong with the complaint, it wasn't a nationwide class action, and
if we would so amend the complaint, he would let us write the
consent decree, which he did.

I didn't believe any of this till it happened. Twenty years
later, in 1991, Steve came through Washington, and he took me out
to lunch at the National Press Club. I asked him, "Steve, how are
we doing under the consent decree?" He said, "Well, Bill, 1970,
when you brought the lawsuit, we had at Yellow 1500 employees, and
one black over-the-road driver who happened to be an over-the-road
driver for a company we acquired in Chicago." And he said, "1991,
the years have been good to Yellow. We've grown, we've acquired,
um, we've got 7000 over-the-road drivers now, and 1500 of them are
African Americans, and I would submit that that is really dramatic
progress. Those are awfully high paying jobs, low entry level
requirements, qualification requirements, and I -- I don't question
the need for concern about re-trenchment, but that is dramatic
progress.

Now, Dave, you also threw out a question about what happened in
terms of the bringing of additional -- You commented you believe
that racial segregation and hierarchy continues in the trade
industry unions, and I think you are right about that. Um, you
asked the question whether EEOC continued to bring additional
litigation. I am -- I am not sure during my tenure after the
hand-off we didn't bring additional litigation.

Um, but we did make an effort at monitoring those trade union
cases, and it is my perception that that continues to be the case.
Let me get Phil Sklover involved here.

Phil, what is the status on that?

PHIL SKLOVER: We are still monitoring cases. One case comes to
mind is the case of MO Local 5880 of the Iron Workers, it was
brought I think 1972, it is still pending, gone through several
contempt actions. What has resulted is that in the last year, a 5
million dollar apprentice training center has opened in Long
Island, which is a direct result of the decree in which many, many
minorities will be trained in a structured way continuing the
process of full integration of this formerly apartheid union.

Also, as a result of this decree, a software package to monitor
the increase, the number of jobs, has been developed, and hopefully
this software package will be distributed throughout the nation so
it can be used to follow through on how well similar unions,
similar locals, are being integrated to achieve the promise of
Title VII.

Ah, it is like what Chairman Brown said, it is the tearing down
of the structure, which has a lasting effect. I may personally wish
that we could bring, or we brought more actions against
construction trades, but we are, um, proceeding with what we have.
Thank you.

WILLIAM ROBINSON: All right, Judge Lay.

JUDGE LAY: I just wanted to make one short comment. There is a
procedural concern here that doesn't directly affect Title VII, but
it certainly has an effect overall. I served on the Judicial
Conference for 12 years under Chief Justice Burger and Chief
Justice Rehnquist, when Burger stepped down. Both of them were
concerned about the excess of litigation in the federal courts, and
I think you'll find that Chief Justice Burger wanted to have all
habeas cases, all civil rights cases tried in a state
administrative agency first, and then before they come to federal
court. We pointed out to him that he had sat on the Micro decision
which said that that would be res judicata if they did so, so he
kind of abandoned that, but it demonstrates how they want to cut
down on the federal courts. And I think the most effective --
effective device that has come out of the Supreme Court is the
Celotex [Corp. v. Catrett, 477 U.S. 317, 324 (1986)] case, which
changed kind of the flavor of what litigation is in the federal
courts. Justice Clark years ago wrote how summary judgment should
be used very sparingly, because it deprived a person of their right
of showing testimony, of bringing an adversary position before
jurors, and so on.

Under Celotex, the Court now, and this was written by Chief
Justice Rehnquist, urges defendants to file summary judgments in
almost every case. And when I talk to you about the 66 summary
judgments that have been affirmed in our court in the last year,
those were all granted, the summary judgment was granted for
defendants in the district courts. And the district courts are very
concerned about their dockets. There isn't a federal judge in the
country that serves on a district court that won't tell you he's
too busy. And summary judgment is a quick way of getting rid of
trials.

And so I -- I think this is a concern. I am not sure how you
overcome that, other than having good lawyers who can adequately
demonstrate that a case is not merited under summary judgment, and
deserves a fair trial. There is all kinds of standards where a
plaintiff, or the nonmoving party is entitled to all favorable
inferences, and so on. But that still doesn't stop the overwhelming
number of summary judgments that are going on in the courts, so
this is something I think lawyers should be aware of, and that the
courts are not anxious to hear your case, and that is too bad. Many
district judges may sit here and deny that, but it is a fact, I
think, that has to be dealt with.

WILLIAM ROBINSON: Um, thank you, Judge Lay. We have exhausted
our time. I apologize to you members of the audience that we didn't
keep our promise to give you an opportunity to mix it up with us up
here. I hope that nonetheless, you have enjoyed the presentations
from our panelists as have I. I thank the members of the panel, and
I ask you to recognize them.

(Applause.)

GWENDOLYN REAMS: And I want to thank you all for coming out
today. Um, to the beginning of our program. Don't forget that this
program continues, um, tomorrow, if you are able to join us for the
discussion on expansion of Title VII, with such issues as
pregnancy, harassment and language discrimination, and perhaps
you'll get an opportunity to hear what really went on, and how sex
-- in terms of how sex got added into Title VII, which Professor
Gottesman mentioned.

And that is more of the subject of that panel, and the panelists
have started to talk about the 1991 Act, and damages, good or bad,
and of course that is the subject of our panel next week.

I want to give special thanks to Barry Hartstein of the American
Bar Association EEO Committee, which jointly sponsored this
program, and offered significant support to us.

Our thanks -- special thanks to Georgetown, another co-sponsor,
who has helped us to plan the program here, and all three programs
being held here, as you know, and I also want to give thanks to
co-sponsors D.C. Bar Employment Section, and also the Lawyers
Committee for Civil Rights, another co-sponsor.

Um, I just want to remind you that the commemorative program, we
hope you'll keep it, but if you decide that you don't want to, we
have a box outside that you can place it in.

Thank you for coming, and we hope to see you at some of our
other sessions.